Appeal against interim injunction restraining defendant from alienating property in a suit alleging a gift deed was fraudulently obtained in place of a Will. Court held fraud claims lie before civil court, not the tribunal, and found no reason to interfere with the injunction, directing withdrawal of the tribunal petition.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
NC: 2024:KHC:36992 MFA No. 5566 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI MISCELLANEOUS FIRST APPEAL NO. 5566 OF 2024 (CPC)
BETWEEN:
SRI J. RAGHU S/O LATE JAYARAM, AGED ABOUT 35 YEARS, R/AT NO. 12, 21ST MAIN ROAD, NANDINI LAYOUT, BENGALURU - 560 095.
…APPELLANT
(BY SRI. MANJUNATH H., ADVOCATE)
AND:
Digitally signed by SUVARNA T Location: HIGH COURT OF KARNATAKA
SL. NO.1 & 2 ARE RESIDING AT, BEERAMMANAHALLI VILLAGE, IDAGOOR POST, C.S.PURA HOBLI, GUBBI TALUK, TUMKUR DISTRICT - 572 213
…RESPONDENTS
(BY SRI.PRADEEP H.S., AND SRI.PRAVEEN R., ADVOCATES)
THIS MFA FILED U/O.43 RULE 1(r) OF THE CPC, AGAINST THE ORDER DATED: 24.07.2024 PASSED ON IA NO.1/2023 IN O.S.NO.6670/2023 ON THE FILE OF THE XLI ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU CITY, (CCH-42), ALLOWING IA NO.1/2023 FILED U/O.39 RULE 1 AND 2 OF CPC.
NC: 2024:KHC:36992 MFA No. 5566 of 2024
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
ORAL JUDGMENT
Aggrieved by the orders passed on I.A.1/23 in O.S.No.6670/2023 dated 24.07.2024 by XLI Addl. City Civil and Sessions Judge, Bengaluru, the defendant is before this court.
under the assistance of the plaintiff No.1 he had approached the plaintiff and his deceased wife and day by day, he developed close relationship with the plaintiff. By taking undue advantage of the plaintiff No.1 he instigated the plaintiff to execute the WILL in his favour in respect of the suit schedule property as he undertake to look after and take care of the maintenance of the plaintiffs by providing food, cloth, medicines and other maintenance. The plaintiff believing the words of the defendant, agreed for execution of the WILL. The defendant took the plaintiff No.1 to Sub-Registrar’s office for registration of the WILL. Believing the words of the defendant had affixed the signature in the deed under the bonafide belief that the same is the WILL. By that the defendant completed the registration process and intead of WILL he obtained a gift deed which is obtained by playing fraud, without the consent and knowledge of the plaintiff. The defendant was paying the amounts towards rents to the plaintiff. During the month of February and March, he has not paid any amount. When the same was questioned the defendant had given an untenable reply by producing the gift deed and claimed that he is the absolute owner of the property and also physically evicted the
plaintiff from the possession of the suit schedule property. As such the defendants are constrained to file the suit. It is also stated that they have approached the tribunal on 09.06.2023 and under Maintenance and Welfare of the Parents and Senior Citizenship Act, 2007 by filing application under Section 23 of the Act for cancellation of the gift deed dated 03.09.2020 and the tribunal had directed the defendant not to alienate the suit scheduled property and the same is pending consideration before the tribunal. The defendants have also filed a suit for declaration against the plaintiff and the same is pending consideration. It is stated that the plaintiff had come before the court seeking the relief of declaration and cancellation of the gift deed. Along with the suit they have also filed I.A.No.1 restraining the defendant from alienating the property. The court by way of this impugned order had allowed the application. While allowing the application, the court observes that the plaintiff has produced a certified copy of the gift deed, encumbrance certificate, khatha certificate, copy of the petition in Misc.No.77/2023 filed before the Tribunal for Maintenance and Welfare of Parents and Senior Citizens and deed of Cancellation of Will. The plaintiff’s claim of title on the basis of
NC: 2024:KHC:36992 MFA No. 5566 of 2024
inheritance is not disputed by the defendant. The court observes that the documents produced by the plaintiffs clearly establish that the plaintiffs have made out a prime facie case at
this stage for grant of interim relief and the balance of convenience lies in favour of the plaintiff’s. Therefore, if the application is not the allowed the plaintiffs would be put to great hardship and the irreparable injury thereon would tilt in the favour of the plaintiff and accordingly allowed the application. Aggrieved thereby the appellant is before this court.
NC: 2024:KHC:36992 MFA No. 5566 of 2024
light of Section 27 of Maintenance and Welfare of Parents and Senior Citizens Act, 2007, no civil court shall has a jurisdiction in respect of any matter to which any provision of the Act applies and no injunction shall be granted by any civil court in respect of anything which is done or intended to be done under this Act. Learned counsel submits that as per the same the civil suit is barred and the civil court has no jurisdiction to entertain the relief as sought for by the plaintiff. When the suit itself is not maintainable, question of granting injunction will not arise, in fact he had raised all these issues before the trial court and the trial court had not considered the same. In this regard, he had relied on the judgment passed by this court in the case of
M.Premanand Kamath Vs B. Hemavati and others arising
out of MFA.No.1372/2016 . Basing on this learned counsel submits that the court ought not to have entertained this application and ought not to have granted injunction.
NC: 2024:KHC:36992 MFA No. 5566 of 2024
Hon’ble Apex Court in the case National Institute of Mental Health and Neuro Sciences Vs. C Parameshwara1 , when the cancellation is sought on the ground of fraud tribunal has no jurisdiction and he has to go before the civil court. As such, he had approached the civil court and filed the suit. It is submitted that in the civil suit he has in fact sought the relief of declaration that he is the absolute owner of the property and also the relief of cancellation. When he has alleged fraud, all the things have to be decided by the civil court by way of a full fledged trial. It is submitted that he is coming up before the civil court stating that the civil court has no jurisdiction and he comes up before the tribunal saying that the tribunal has no jurisdiction. The appellant/defendant is taking inconsistent pleas. He submits that now they are going to withdraw the case pending before the tribunal.
1 2005 (1) Kar Law Journal 486 SC
registrar's office and in that place the defendant had got the gift deed and he had played fraud on him. It is his case that the defendant was taking care of the plaintiff and he was paying the rents out of the said property. When once the defendant stopped paying the rents, when he questioned the same, the defendant has shown the gift deed at that point of time, when he came to know about the same and the plaintiff approached the tribunal. In the light of the judgment of the Hon’ble Apex Court in the case National Institute of Mental Health and
Neuroscience Vs. C Parameshwara referred supra . When
the issue of fraud is pleaded the tribunal has no jurisdiction and it has to be decided by a competent civil court. Then he approached the civil court and filed the suit and the trial court had granted the injunction. The submission of the learned Counsel with regard to the jurisdiction of the Civil Court is concerned, the relief that is sought by the plaintiff is a declaration and also cancellation on the grounds of fraud. No doubt when the plaintiff wants to approach the civil court he ought to have withdrawn the petition pending before the Tribunal and ought to have approached the civil court, but in this case defendant/respondent is pursuing the remedies
NC: 2024:KHC:36992 MFA No. 5566 of 2024
simultaneously. It is submitted before this court that now they are taking steps to withdraw the petition before the Tribunal and they will pursue the civil suit.
Accordingly, this court passing the following:
ORDER
SD/(LALITHA KANNEGANTI) JUDGE
TS List No.: 1 Sl No.: 23
2 issues framed by the court
Whether the civil court has jurisdiction to entertain a suit for cancellation of a gift deed on grounds of fraud despite Section 27 of the Senior Citizens Act.
Whether the trial court correctly granted an interim injunction restraining alienation of the suit property.
Colour shows how this judgement treated each authority
M.Premanand Kamath Vs B. Hemavati and othersRelied on
MFA.No.1372/2016
National Institute of Mental Health and Neuro Sciences Vs. C ParameshwaraRelied on¶6
2005 (1) Kar Law Journal 486 SC
4 provisions across 2 enactments
Sri J. Raghu S/o Late Jayaram
Sri S.Govindaiah S/o Late Moodalagirigowda
Smt G.C.Lakshmamma W/o Sri Govindaiah
Lalitha Kanneganti
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
